When the RIAA Initiative first began, the RIAA apparently
issued more than one thousand subpoenas to various Internet
Service Providers (ISPs) under the Digital Millennium Copyright
Act. These ISPs include commercial, academic, and private providers
of Internet service. For example, the RIAA would send a subpoena
to Earthlink for any individual who the RIAA determined shares
files and subscribes to Earthlink's DSL service. However, the
D.C. Circuit Court of Appeals ruled that the RIAA
misused the DMCA for this purpose. The RIAA continues to
issue subpoenas but does so now under specific "John Doe"
lawsuits.

So, the RIAA can't use subpoenas any more, right?

Wrong. Since the D.C. Circuit ruled that the
RIAA improperly sought the issuance of subpoenas
under the Digital Millennium Copyright Act, the
RIAA has chosen to file "John Doe" lawsuits and
issue subpoenas under the traditional rules of
evidentiary procedure in federal courts.
Although the Court must grant the RIAA
permission to issue subpoenas in an "expedited
discovery" fashion, most courts have granted the
RIAA this permission. Thus, the RIAA can still
and does still use subpoenas.

Are the subpoenas issued to me?

No, not the subpoenas described here. The
subpoenas are issued and directed to the ISPs
associated with specific IP addresses (this
could be a cable company like Comcast, an
academic institution like Purdue University, or
a traditional ISP like Earthlink). Should you be
the individual associated with an IP address at
a particular time, the subpoena may seek
information about you from the ISP. However, the
subpoenas is issued and directed to the ISPs.

How did the RIAA find me?

Based on information we have obtained, the
RIAA used automatic software and/or manual
searches to search for individuals that shared
large numbers of songs. In so doing, the RIAA
also saved digital images of the songs offered
for sharing on these individuals' computers. The
RIAA would also record the username (the
username at kazaa.com, for example) and the IP
address (xxx.xxx.xxx.xxx) associated with the
individual computer that contained the files.

With the IP address, the RIAA can easily
determine through ARIN which entity or
individual "owns" the IP address. For example,
when you send an email, the email header
typically contains the IP address for your
computer. Using the site www.arin.net, I can
determine who "owns" the IP address your
computer has been assigned, often this will be
your ISP.

The RIAA would then send a subpoena to the
ISP seeking the identity of the individual who
has licensed the IP address from the ISP.

We also suspect that the RIAA may have
established dummy sites or tagged certain files
released onto the file-sharing networks. Thus,
like the use of tagged money, these files can be
traced.

How do I know whether my ISP received a subpoena?

In most cases, the ISP will provide you
notice soon after receiving the subpoena. When
the RIAA Legal Initiative first began in 2003,
various web sites recorded the IP addresses and
usernames that have been the subject of
subpoenas by the RIAA. These typically were
obtained from the DMCA subpoenas no longer used.

If you don't know your computer's IP
address, you usually can check it in your TCP/IP
settings or the complete header in the email you
send from your computer (ie send yourself an
email). If you still cannot determine your IP
address, contact your ISP. Dial-up customers
will be assigned a new IP address each time one
connects to the Internet.

Please also understand that if your
computer is on a network, you will have an
internal network IP address. Usually, these IP
addresses begin 192.168.xxx.xxx. This is not the
IP address for which you should be looking.

IP addresses in the form 10.x.x.x and
172.16.x.x thru 172.31.x.x have also been
reserved for private networks. [Thank you to
James Ford for this technical clarification.]
Consequently, you should not be looking for IP
addresses falling within these blocks as well.

Whether you will hear from your ISP depends
on your particular ISP. Some ISPs (such as
Earthlink) will notify the customer and provide
a small window of time in which to file an
objection to the subpoena. Your ISP will be able
to tell you its practices in response to
subpoenas (whether or not from the RIAA).

Should you receive notice from your
ISP that it has received a subpoena, you should
contact an attorney immediately. The
ISPs often provide a limited amount of time to
see evidence of an objection before releasing
information.

Will my ISP reveal my identity to the RIAA?

The answer to this question depends on your
ISP. Contact your ISP's legal department for
more information on their specific policy.

Many ISPs will provide the customer with an
opportunity to object prior to disclosure of
your identity. Consequently, should you
receive notice from your ISP through email or
snail mail, contact an attorney immediately.

You once indicated that the D.C. Circuit ruled
subpoenas to be improper for use by the RIAA. Is
this not the case any more?

This is not the case any more. Soon
after the initiative began, the D.C. Court of
Appeals issued an opinion holding that § 512(h)
of the DMCA does not authorize the issuance of
subpoenas to ISPs where the ISP is merely a
conduit for the communications of others. At the
time, we recommend that "If
you learn that your ISP has received a subpoena,
contact it immediately, object to the subpoena,
and cite the D.C. Circuit opinion. Please note
that file-sharing copyrighted material remains
illegal. The D.C. opinion does not change this."This warning is no
longer applicable. You still may object to a
subpoena, but not on the grounds of the D.C.
Circuit opinion as the RIAA changed its
strategy. You should still contact an attorney
immediately.

Identity Revealed by ISP

What happens when my identity has been revealed to the RIAA
by my ISP?

When the ISP reveals an identity to the RIAA's attorneys, the
ISP will reveal the identity of the customer in whose name the
Internet account is registered.

For example, if you use your brother's computer to use the
Internet or use your brother's Internet connection, the ISP
will reveal your brother's identity. Consequently, should
a lawsuit be filed, it will probably be your brother's name
in the suit and not yours. This obviously poses several unique
problems that will need to be addressed.

You should understand that a lawsuit will have already been
filed against one or more John Does. The identity revealed by
the ISP will be associated with a particular IP address related
to one of the John Doe defendants in the litigation. Consequently,
the "individual" has already been sued.

The RIAA will use the identifying information to contact the
individual so identified by the RIAA and provide a limited (VERY
LIMITED) window in which to settle on the RIAA's terms.

If one does not settle, the RIAA may name you in the lawsuit
or file a separate suit with you named individually (eg from
John Doe to Charles Mudd). The consequences become more severe
in terms of settlement when this occurs.

Will I be sued if the RIAA obtains my identity?

Now, you will have likely been sued as a "John Doe"
by the time the RIAA receives your identity. As for the number
of files, the RIAA has filed suit against individuals for less
than 600 files allegedly shared.

What do I do if my ISP has revealed my identity to the RIAA?

Call an attorney immediately. Beyond this, each individual
will be faced with individual circumstances that warrant individual
responses and legal representation.

Litigation Initiated

Has the RIAA actually sued anyone?

Yes.
Upon our best information, the total number of unique individuals
(as opposed to IP addresses which often have been duplicated
or where multiple IP addresses relate to the same individual)
sued by the RIAA exceed fifteen thousand (15,000). In the beginning,
nearly all individuals that actually had a suit filed against
them were personally named. Now, the RIAA typically personally
names an individual when the RIAA states it did not receive
communication from the individual. The bulk of the 15,000 represent
individuals sued as a John Doe.

How will I learn that I have been sued?

Most recently, the John Doe suits usually
mean that you will learn from your Internet
Service Provider that the RIAA or MPAA has
targeted your IP address. As such, this means
that you have been sued as a John Doe associated
with your particular IP address. While it may
appear that you have not actually been sued yet,
this represents a significant misunderstanding.
Sometimes, a party may proceed against a John
Doe. Moreover, unless one intervenes, the
Plaintiff (here the RIAA) usually obtains the
identity of the John Doe. In such a case, the
Plaintiff can replace John Doe #XX with your
personal name. Here, this will occur should the
individual fail to respond to the letters sent
by the RIAA and MPAA demanding settlement.

Previously, when this RIAA Legal Initiative
began, individuals may have learned through a
phone call from the media. Should this still
occur (when one is personally named in the
suit), it is always wise to consult with an
attorney before communicating with the media (if
ever). Simply state "No Comment" should you be
contacted. Your statements to the media may be used against
you.The
media can be a great tool and resource. However,
proceed with caution and consult an attorney
before communicating with the media.

You may also be served
by a sheriff, special process server, or United
States Marshal.

Internet 2 Update: As
the Internet2 users targeted by the RIAA have
been associated with academic institutions, you
may learn from your academic institution that
you have been targeted. You should be cautious.
Some academic institutions have been reported to
instigate disciplinary proceedings. Should
disciplinary proceedings be a possibility, we
recommend that you consult with an attorney.
However, we also encourage prompt attention to
all requests by the academic institution. They
may offer resources to assist you. YOU SHOULD BE
AWARE THAT ILLEGAL FILE-SHARING MAY LIKELY
VIOLATE COMPUTER USE POLICIES AT ACADEMIC
INSTITUTIONS, and FOR GOOD REASON.

What do I do after I learn
I have been sued by the RIAA?

Consult an attorney immediately. See the top
of this page for information on how to contact
attorneys handling these matters or simply email
or telephone
Charles Mudd at 773.588-5410 or
cmudd@muddlawoffices.com.

Is it true the RIAA sued a twelve (12) year old?

The RIAA sued an individual whose name had
been revealed to it. This individual happened to
be a 12 year old. This case has been settled.

Is it true the RIAA sued a deceased individual?

It appears to be true.

I have been sued, but its no where near where I
live. Did they make a mistake?

While possible, it's unlikely. The most
recent suits have been initiated near or in the
jurisdiction in which the ISP intended to be
subpoenaed happens to be located. The location
or court in which the particular case has been
filed should not be construed as a mistaken
identity or mistake by the RIAA or the MPAA.

What about defenses?

Intent

The United States Copyright Act does not
include a mental state (mens rea)
requirement. So, an individual's intent
becomes irrelevant for purposes of
litigating a defense. It may have some
relevance depending on the circumstances for
purposes of settlement.

Motion to Quash

We know of no successful motion to quash
a subpoena issued in a John Doe suit by the
RIAA and/or MPAA.

Summary Judgment

A court in the United States District
Court for the Northern District of Illinois
granted summary judgment brought against a
defendant by the RIAA based on the evidence
it had collected and submitted to the Court.

Parental Liability

This certainly remains
a theoretical argument. We know of no
successful application of the argument.

It's June 2006, are the
MPAA and RIAA still pursuing people?

Yes,
suits against individuals using the Internet continue by both
the RIAA and MPAA.

John Doe Lawsuits - Part I

In response to the D.C.
Circuit's December 9, 2003 opinion, the RIAA stated that
it would file John Doe lawsuits. It did so. Although the D.C.
Circuit opinion has binding authority only in the D.C. Circuit
and only persuasive authority elsewhere, the RIAA proceeded
to file the John Doe lawsuits against all perceived and/or alleged
infringers with whom it has not yet settled. Thus, the RIAA
has ceased using the DMCA as a vehicle to obtain the identifies
of any perceived and/or alleged infringers prior to filing a
lawsuit.

Under the DMCA, the RIAA
would issue a subpoena to your ISP without filing a
lawsuit or providing you with notice (it would
likely not know your identity), as described above.
Now, the RIAA will file a lawsuit with the defendant
named "John Doe." It will then seek the court's
leave to issue a subpoena to your ISP. While a John
Doe suit imposes judicial discretion and oversight
on the RIAA, the courts will very likely grant RIAA
and the Record Companies the authority to send the
subpoenas to your ISP.

If you receive notice of a
subpoena from your ISP in connection with a John Doe
suit, you should contact legal counsel immediately.
Your legal counsel need not identify you and may
proceed defending you as a John or Jane Doe. By
having representation, you will ensure that your
rights and arguments will be represented and the
RIAA's motions and actions will not proceed without
objection.

By filing a lawsuit first
and avoiding DMCA concerns, the RIAA has eliminated
some of the arguments used by the ISPs to refuse
disclosing any identities. Consequently, some of the
ISPs who fought the RIAA previously may be more
reluctant to do so now. Therefore, your ISP may very
well disclose your identity (see above).

Once the RIAA and the
Record Companies learn of an individual's identity,
they will very likely amend the Complaint to reflect
the individual's true name rather than "John Doe."
The RIAA will then have this individual served with
a summons and copy of the Complaint.

At the same time, individuals should be
forewarned that a party may proceed against a John
Doe (or Jane Doe) and the failure to intervene in
some manner may adversely affect one's rights.

John Doe Lawsuits - Part II - Questions
and Answers

Can the RIAA or Record
Companies file suit against a "John Doe"?

Yes. The RIAA can
pursue a defendant as a John Doe until that
defendant has been identified. In some cases, a
plaintiff may obtain a judgment against a John
Doe. The failure to intervene either as a named
individual or a John Doe (or Jane Doe) may
seriously adversely affect one's rights. Should
you know that you are the subject of a John Doe
suit, you should contact an attorney immediately
(contact
Charles Mudd or go to
subpoenadefense.org).

Are there specific time
limits in which to respond to receiving a summons
and Complaint?

Yes. The summons
should inform you how many days you have to
respond to the Complaint. These typically
include weekends and holidays (unless the actual
deadline falls on one of these days). As we
cannot know without seeing your summons, any
information provided here should be treated as
general information and not relied upon in
acting on your particular situation. You should
contact an attorney immediately upon being
served a summons and Complaint (contact
Charles Mudd or go to
subpoenadefense.org).

Will I be able to
settle without a public record?

This is a very good
question. If you are the subject of a John Doe
suit, you will more than likely eventually be
the subject of the lawsuit and be required as
part of the settlement to sign a stipulated
judgment. A lot depends on the timing and how
soon after the RIAA learns your identity you or
your attorney contact the RIAA. Should you act
quickly, the RIAA will settle without naming you
personally n the lawsuit.

Additional
questions and answers will be provided as these
issues continue.

Amnesty Initiative "Clean Slate"

The Recording Industry offered the "Clean Slate"
program to provide existing file-sharers who had not
yet been notified of a lawsuit or subpoena to
voluntarily identify themselves, enter into an
agreement with the Recording Industry, and obtain
"amnesty" for the individual's prior conduct. There
exist concerns with the "Clean Slate" program. For
example, the RIAA and/or Recording Industry do not
represent ALL recording companies to which
copyrighted songs belong. Thus, the agreement would
not apply to non-RIAA record companies. Nonetheless,
one would be identifying themselves as a
file-sharer. Consequently, if the non-RIAA record
companies obtained the list of file-sharers, nothing
in the Amnesty agreement would prevent these
companies from pursuing the individual. Again,
significant concerns exist with the Amnesty or
"Clean Slate" program. It is always wise to consult
an attorney before doing anything.